2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 6 - Grand Jury
Section 31-6-7 - Assistance for grand jury; report.
A. The district court shall assign necessary personnel to aid the grand jury in carrying out its duties. The district attorney or his assistants shall attend the grand jury, examine witnesses and prepare indictments, reports and other undertakings of the grand jury.
B. When engaged in the investigation of an offense over which he has jurisdiction, the attorney general or his assistants may attend a grand jury, examine witnesses and prepare indictments, reports and other undertakings of the grand jury.
C. When a grand jury is convened in response to a citizens' grand jury petition pursuant to Article 2, Section 14 of the constitution of New Mexico, the district attorney or his assistants, unless otherwise disqualified, shall attend and conduct the grand jury.
D. A prosecuting attorney attending a grand jury and all grand jurors shall conduct themselves in a fair and impartial manner at all times during grand jury proceedings.
E. A grand jury, in its discretion, may make a formal, written report as to the condition and operation of any public office or institution it has investigated. The report shall not charge any public officer or other person with willful misconduct, corruption or malfeasance unless an indictment or accusation for removal from public office is also returned by the grand jury. The right of every person to be properly charged, face his accusers and be heard in his defense in open court shall not be circumvented by the report.
History: 1953 Comp., § 41-5-7, enacted by Laws 1969, ch. 276, § 7; 1979, ch. 337, § 5; 2001, ch. 98, § 1; 2003, ch. 363, § 4.
ANNOTATIONSRepeals. — Laws 1969, ch. 276, § 14, repealed former 41-5-7, 1953 Comp., relating to the effect of a challenge to an individual grand juror.
The 2003 amendment, effective July 1, 2003, inserted "and all grand jurors" following "grand jury" and substituted "during grand jury proceedings" for "when assisting the grand jury" in Subsection D.
The 2001 amendment, effective July 1, 2001, added the Subsection A designation; in present Subsection A, substituted "necessary personnel" for "court reporters, bailiffs, interpreters, clerks or other persons as required", deleted the former second sentence, which read "The attorney general, when requested by the district court, shall assist the grand jury", inserted "or his assistants" following "district attorney," deleted the former last sentence which read "The prosecuting attorney shall conduct himself in a fair and impartial manner at all times when assisting the grand jury"; and added Subsections B to E.
Duty of district court. — It is for the district court, and the district court alone, to decide who shall serve as grand jurors. Section 31-6-7 NMSA 1978 does not allow the district court to delegate its supervisory role over the selection of the grand jury to the district attorney's office. De Leon v. Hartley, 2014-NMSC-005.
Selection of a grand jury must be under the control of the district court. — Where, after the orientation and swearing of the grand jurors, the district court transferred the process of selecting and excusing jurors to the district attorney's office without further apparent involvement by the district court; the list of grand jurors used by the district attorney's office contained notations that suggested that someone in the district attorney's office excused several grand jurors; and the district court found that there was no fraud or prejudice to defendant in the conduct of the grand jury proceeding and denied defendant's pretrial motion to quash the indictment, the district court should have quashed the indictment irrespective of whether any actual fraud or prejudice was established when the improper involvement of the district attorney in the excusal of grand jurors was brought to the attention of the district court. De Leon v. Hartley, 2014-NMSC-005.
"Prejudice" is appropriate constitutional standard. — Inasmuch as "prejudice" is an appropriate standard in considering the exercise of constitutional rights before a trial jury which determines guilt, there is no reason to apply a stricter standard in considering the exercise of constitutional rights before a grand jury which determines probable cause to accuse. State v. Martinez, 1982-NMCA-002, 97 N.M. 585, 642 P.2d 188, cert. quashed, 98 N.M. 51, 644 P.2d 1040.
Burden of showing prejudice. — When prosecutorial misconduct during the presentment of the case is claimed, the defendant has a burden to show demonstrable prejudice. State v. Velasquez, 1982-NMCA-154, 99 N.M. 109, 654 P.2d 562, cert. denied, 99 N.M. 148, 655 P.2d 160.
Prejudice need not be shown where unauthorized person present. — A defendant need not show prejudice where an unauthorized person is present during the proceedings, or where the district attorney is present during grand jury deliberations. State v. Velasquez, 1982-NMCA-154, 99 N.M. 109, 654 P.2d 562, cert. denied, 99 N.M. 148, 655 P.2d 160.
Prosecutor to protect public interest and rights of accused. — In dealing with the grand jury, the prosecutor's duty is to protect both the public's interest and the rights of the accused. State v. Cruz, 1983-NMSC-045, 99 N.M. 690, 662 P.2d 1357.
Prosecutor conduct. — Prosecutor must scrupulously refrain from words or conduct that may influence the decision of the grand jury. State v. Augustin M., 2003-NMCA-065, 133 N.M. 636, 68 P.3d 182, cert. quashed, 2004-NMCERT-002, 135 N.M. 170, 86 P.3d 48.
Where prosecutor's conduct violative of section. — Prosecutor's conduct of grand jury, where the total case was presented to the grand jury in less than nine minutes and all questioning was by leading questions, clearly violates this section. State v. Sanchez, 1980-NMCA-137, 95 N.M. 27, 618 P.2d 371, overruled on other grounds by Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244.
Prosecutor's jury instructions violated this section. — Where petitioner was charged with second degree murder for the killing of petitioner's spouse; petitioner testified that the victim had physically abused petitioner and that petitioner had reported the abuse; and after giving the grand jury final jury instructions, the prosecutor told the grand jury that petitioner "was directly appealing to you to consider the consequences of your verdict. That is absolutely inappropriate", and that petitioner "was improperly seeking your sympathy", the prosecutor failed to act in a fair and impartial manner. Herrera v. Sanchez, 2014-NMSC-018.
Statements explaining law or procedure. — Prosecutor's statements explaining the law or procedure are proper so long as the statements are not in conflict with the charge given to the grand jury by the court and are not otherwise incorrect statements of the law or improper. State v. Hewitt, 1988-NMCA-053, 108 N.M. 179, 769 P.2d 92, cert. quashed, 107 N.M. 785, 765 P.2d 758.
Prosecutorial comments found not to violate this section. — Prosecutor's comments explaining grand jury procedures concerning a target witness and the witness' attorney and the privilege against self-incrimination were not improper. State v. Martinez, 1982-NMCA-002, 97 N.M. 585, 642 P.2d 188, cert. denied, 98 N.M. 51, 644 P.2d 1040.
Duty to advise grand jury of the elements of offense. — The state's obligation to advise the grand jury of the elements of the offenses it presents to the grand jury is satisfied if the prosecutor specifically directs the grand jurors, on the record, to the portions of the grand jury manual containing the elements of common offenses where the appropriate elements of the offenses under consideration may be found, a copy of the elements of each offense considered is also made a part of the record, and the prosecutor is available to answer grand juror questions about the manual on the record. State v. Ulibarri, 1999-NMCA-142, 128 N.M. 546, 994 P.2d 1164, aff'd, 2000-NMSC-007, 128 N.M. 686, 997 P.2d 818.
Failure to present evidence not directly negating guilt. — The failure of the prosecutor to present evidence that did not directly negate guilt did not breach his duty to assist the grand jury fairly and impartially. State v. Juarez, 1990-NMCA-021, 109 N.M. 764, 790 P.2d 1045, cert. denied, 109 N.M. 751, 790 P.2d 1032.
Section does not provide for judicial review as to whether exculpatory evidence was withheld from the grand jury. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39.
Law reviews. — For comment, "The Use of an Information Following the Return of a Grand Jury No Bill: State v. Joe Nestor Chavez," see 10 N.M.L. Rev. 217 (1979-80).
For annual survey of New Mexico Criminal Procedure, see 20 N.M.L. Rev. 285 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 38 Am. Jur. 2d Grand Jury § 33 et seq.
Presence of unauthorized persons during state grand jury proceedings as affecting indictment, 23 A.L.R.4th 397.
Duty of prosecutor to present exculpatory evidence to state grand jury, 49 A.L.R.5th 639.
Presence of persons not authorized by Rule 6(d) of Federal Rules of Criminal Procedure during session of grand jury as warranting dismissal of indictment, 68 A.L.R. Fed. 798.
38A C.J.S. Grand Juries §§ 74, 94 et seq., 102 et seq.
